UK: Who Are The True Defenders Of Free Speech And Who Are Its Real Foes?

When in 1991 I qualified I into a well-known claimant media
practice I was fortunate enough to find on my desk on the first day
that I arrived a file containing a libel action being brought
against London Weekend Television (by whom my new firm had just
been instructed).

LWT was being sued by a corrupt local politician who was using
his Freemasonry connections to nobble planning committees and
secure planning permission on land which otherwise would not have
any chance of being granted planning permission, and by that means
dishonestly making very large sums of money.

Shortly after I took the file over, the ill-drafted defence that
I inherited was struck out, and the prospects of defending the
action looked bleak, our predecessor lawyers having recommended a
very substantial offer of damages to this corrupt individual. We
appealed against the strike-out application, which gave me a period
of nearly a year to work on what was then called the
"justification" defence (now called "truth")
and make it good, during which time I worked as much as an
investigative reporter as a lawyer.

Armed with the fruit of my research we applied to amend, on the
eve of the first day of trial, with several pages of a new
justification defence – a hearing which was vigorously
contested. All our amendments were, however, granted in full, and a
few weeks later the claimant served a unilateral notice of
discontinuance. I was told that LWT had never been in a libel
action where their costs had been reimbursed, and so had to create
a new accounting process to permit this. I went on to build a
defendant practice on that success.

So it was that, despite starting my career at a leading claimant
firm, I have been fortunate enough to have had a rich mix of
claimant and defendant work; and in particular it has been my
privilege to protect high-quality investigative journalism. I hope
that this allows me to consider media law issues with the benefit
of seeing the perspective of both sides.
There was then, as there is now, an almost complete divide between
claimant and defendant lawyers, especially when it comes to Fleet
Street. I believe that it is, however, a relatively new phenomenon
that what we used to call defendant lawyers have now taken to
calling themselves Free Speech Lawyers ("FSL"). Having
seen a website for American attorneys claiming that moral high
ground, I suspect it is one of those phenomena which has invaded us
from the other side of the Atlantic.

What is free speech?

It begs the question then, what is a FSL? To answer this, we
must decide what is the true nature of free speech. The only place
where I can think of to look to answer that question is Article 10
of the European Convention on Human Rights, which reads as follows:
"Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers ..." (emphasis
added). The second part of the article states that with this right
comes responsibilities.

There are three features of this precious human right which are
often overlooked, especially by FSLs. Strikingly the first part of
the right of free speech is the right of the individual to receive
information. The second is that the right requires that
"information" should be freely imparted, information
being "facts provided or learned about something or
someone". I take that to mean that "information"
that is in fact false is not information at all and therefore falls
outside the Article 10 right. The third is that the right should be
exercised responsibly.

These key features of the Article 10 right are recognised in
both the IPSO and the NUS Codes, both of which stress the need for
care to be taken not to disseminate false "information",
and where that happens for the falsity to be corrected. They
recognise therefore that dissemination untruths have no place in
genuine free speech; and that those who have been misled have the
right to receive information in the form of a correction of the
false information that they have received.

Is the free-speech right fairly distributed?

Although there has been some mitigation of this with the advent
of social media, when it comes to exercising the right of free
speech there remains an immense inequality between the behemoths of
Fleet Street and even the highest-profile individuals and
corporates (such as charities, NGOs, and companies trading for
profit). As George Orwell sagely observed in his wonderful Animal
Farm, so far as the ruling pigs are concerned, "some are
more equal than others". For the free-speech pigs, read
behemoths like Associated Newspapers and News UK.

The reason that we need both effective press regulation and the
protection of reputation and privacy is precisely because without
them those money- and hubris-driven behemoths of Fleet Street will
mislead us according to their editorial whim, and further rob
non-porcine individuals and entities even of such free-speech
audibility as they would otherwise have by telling lies about
them.

What do FSLs do pre-publication?

What is it that the self-styled FSLs of our country do to
justify claiming the moral high ground – which not only do
they ascribe to themselves but inevitably do to those whose
interests they serve? An ex-journalist at a leading Sunday tabloid
told me of his high-profile in-house lawyer and that this
individual had facilitated the publication of more false stories
than anyone else he knew. Do FSLs at newspaper groups which have
been found guilty of serial criminality and human rights breaches,
regard it as part of their sacred calling to turn a blind eye to,
facilitate, deny and/or cover up this wrongdoing?

But the role of FSLs prior to publication is not the primary
subject of this article. It is their role post-publication, along
with the roles of individuals like newspaper apologists such as
managing editors, "ombudsmen", and entities such as IPSO,
that I want to expose to the harsh light of reality. They are the
ones who "chill" free speech by trying to prevent those
who have been misled learning the truth – a right which
Article 10 ranks no lower than the right to disseminate
information.

Who are the real FSLs post-publication?

One of the jobs of FSLs whose titles are part of the IPSO regime
clearly regard their altar-service to the false god of free speech
(a counterfeit of the true one) as including the prevention of
those who have been misled by their titles from learning of that
fact. They do this by trying to ensure that the corrections are a
fraction of the size and prominence of the offending article. For
example, every time IPSO refuses to order the correction of front
pages via the front page it drives a coach and horses through
Article 10 by denying the free-speech right of the millions of
non-purchasers of the paper who have been misled by the front page
to receive the corrective information in the only place where they
will see it. It therefore proves the claim on its website to
"help maintain freedom of expression" to be entirely
false, and consequently a flagrant breach of its own Code against
misleading or inaccurate material.

It must be difficult for those who are employed to be apologists
for the same organisations and individuals who cynically blitzed
the Article 8 rights of many thousands via phone hacking, blagging,
bribing police officers, etc, to place their earnings/bonuses at
risk by ever reminding those that employ them of what the true
nature of free speech is. Those in private practice, however, have
much less excuse.

Although I should no longer be, I am still astonished when
counsel settle defences denying the defamatory nature of an article
which is blindingly obviously defamatory; and solicitors (doubtless
citing free-speech principles) sign statements of truth to such
pleadings. I remember one hearing where Sir Michael Tugendhat, with
his customary grace, declared being surprised at the assertion made
via the paper's lawyers that an article was not defamatory,
saying that until he had read the defence it had not even occurred
to him that the article was anything other than defamatory. A
leading FSL QC was on his feet at the time, and later spent a
pointless half hour trying to persuade a Court of Appeal judge that
the same publication meant other than it plainly did –
thereby making a second attempt to rob the readers of his client
paper of their right to learn that the paper had misled them.

Another routine task for FSLs both at the Bar or in the
solicitor profession is to promulgate defamatory meanings for
publications which they blindingly obviously do not bear. The
defamatory meaning they advance is one which is crafted around the
facts which the newspaper thinks it can prove, rather than the true
sting of the publication.
Again, I have no idea how the barristers who produce such
documents, and the solicitors who sign off on them, are able to do
so with a clear conscience; or with any sense that they are truly
serving the cause of free speech. This is an exercise in preventing
those who have read the offending article, imbibed its sting and
been misled, from learning the truth – thereby trashing their
free-speech rights. In those circumstances there is no doubt who
the FSLs are; it is those who are acting for the claimant.

So it is in an IPSO complaint where there is an argument over
the prominence of the correction; it is the claimant's lawyers
who are the real FSLs because they are seeking to ensure that those
who have been misled by a newspaper article are disabused of that
false information, thereby securing their Article 10 rights. Since
the paper has stepped outside its Article 10 right by publishing
the false information, it has no free-speech right to defend.

My most recent encounter with an FSL acting for a broadsheet
newspaper concerned an Islamophobic attack on a moderate Muslim
community leader by whom I was instructed. The FSL sought to deny
the readers of that paper their free-speech rights by insisting
against the plain words of the article that it meant something
other than what a judge subsequently emphatically found was the
case, and as we had said it meant.

When that was brought to an abrupt end at a preliminary trial on
meaning, the retreat position was to try to deny the claimant the
Statement in Open Court which fulfilled the element of the Article
10 right which is less popular in Fleet Street; namely the
entitlement of the general public to receive information –
such as the information that this individual had been falsely
accused by a national newspaper of severe wrongdoing and
anti-social activity.

As any victim of falsities promulgated by one of the Goliaths of
Fleet Street will tell you, one effective means of robbing an
individual or organisation of their right to free speech is widely
to disseminate damning lies about them. The real FSL is the
solicitor and/or barrister acting for that individual, particularly
(as was the situation in this most recent encounter with FSL) a
community leader. In those circumstances not only has the
leader's free-speech right been undermined, but so has that of
the community that they serve as its mouthpiece.

The ugly truth is that the real divide is between those who earn
their living by doing the unquestioning bidding of powerful and now
proven-to-be-corrupt organisations whose hubristic ambition is to
say whatever they like without being accountable to anyone, and
those that hold these entities to account when they offend against
the real principles of free speech. It is the determination of
entities such as News UK and Associated Newspapers to be
accountable to nobody but themselves – evading the obligation
of responsibility placed on them by Article 10 – which has
created yet another hopelessly compromised regulator in the form of
IPSO, whose glaring lack of independence is itself a dire threat to
true free speech.

The seven deadly sins against free speech

Now that the anti-democratic (true) free-speech-hating powers of
Fleet Street have bullied a weak Conservative into abandoning
Leveson 2, contrary to the strong views of Sir Brian himself, if we
want a press which truly serves the public interest rather than its
own, then it is down to media lawyers to play their part to bring
about change.

The only way they can do that is to take a principled stand
against the routine abuse of free speech for which Fleet Street is
responsible. This would be a good start:

Never seek to delay the publication of a correction when it is
clearly warranted.

Never seek to ensure that a correction is less prominent than
the original.

Never settle or sign a defence which denies that an obviously
defamatory publication is defamatory.

Never try to defend a libel action by asserting a defamatory
meaning that a publication plainly does not bear.

Never stand in the way of the reading of a Statement in Open
Court for a successful claimant.

Never write articles making false claims about libel law to the
effect that it is unduly antipathetic to free speech – which
we all know it is not.

Never comment in support of IPSO with claims that it has any
legitimacy or independence – when we all know that it does
not.

Not that any of them would instruct me in any event, but one of
the reasons why I have never acted for a Fleet Street title is that
if I did, I would frequently be required to commit at least one of
these seven deadly sins against free speech, which as a true FSL
(and devout Christian) I am not prepared to do. If all of we media
lawyers refused to do any of these things, then what an
extraordinary difference we would make – dragging almost
overnight the British press from being the least trusted in the EU
to being a world leader.

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